Lord Cope of Berkeley: My Lords, like other noble Lords, I welcome the order. In general, I am in favour of consolidating legislation when such legislation becomes too complicated. I do not think that we do enough consolidating of legislation. That is perhaps another way of saying that we fiddle about with the law too much and too frequently. It makes it extremely inconvenient for those who wish to consult the law and deal with it.

7 Dec 1998 : Column 766

Most of the order is consolidation and there is a list of the origin of the clauses in the explanatory document. Because the order is not purely a consolidation measure, it has not followed the "consolidation route" in Parliament and so has not been subject to the usual checks. However, it is a long and complicated order, the old provisions and the new. In many respects, it is not very satisfactory to have to discuss it in a single debate. As the powers and the customs of your Lordships' House are under consideration, it seems to me--and I speak personally--that the possibility of the House going into Committee on an order of this length and importance, might be helpful. As I said in the course of debates on what became the Northern Ireland Act, our habit of never voting against orders might come into question as well.

I have many detailed points I want to raise which are, by their nature, Committee stage points, but I do not apologise as this is our only opportunity to raise them. The principal new part of the order, as has been said, is the outlawing of discrimination against goods and services. I say to the noble Lord, Lord Fitt, that I assume that in future it will be illegal for a shop to put up a notice saying that it refuses to serve Roman Catholics or Protestants. I am not sure whether it would still be illegal to put up a notice saying that it refused to serve the security forces. The security forces are not a religion, although they may sometimes feel as though they are. I would be interested to know the answer to that. Like the noble Lord, Lord Fitt, and other noble Lords, I strongly deplore any notice of that kind.

In the case of shops and businesses, it is extremely difficult to see how one could write a law that discriminates against the buyer, the customer, which the noble Lord, Lord Molyneaux, rightly and understandably, in many senses, asked for. If people choose not to buy from a particular shop, it is difficult to see how you can say, "Well, you should have bought your goods from shop A instead of shop B, and you should not have discriminated", even if the discrimination is on religious grounds of some kind.

6.15 p.m.

Lord Molyneaux of Killead: My Lords, I believe that the noble Lord, Lord Fitt, confirmed that there are cases where certain organisations, in newspapers and in distributed leaflets, have made no secret of, the identity of those promoting a boycott on a large scale. Surely, there must be something in common law, as it exists, to deal with that kind of thing. Could that provision be extended?

Lord Lester of Herne Hill: My Lords, perhaps I may take the example that the noble Lord, Lord Fitt, gave about the shop that would not serve the security forces. That is an example of indirect religious discrimination. If the proportion of the members of the security forces who could not comply were mainly of one religion, that indirectly could be a condition or a requirement, yet disproportionately. We are getting into complex areas. Perhaps I may take the example of the collective boycott. I am confident that that would be both an

7 Dec 1998 : Column 767

unlawful conspiracy in common law, a tort, and also might well constitute pressure to discriminate unlawfully under the order.

Lord Cope of Berkeley: My Lords, those are helpful interventions. I am glad to learn that a conspiracy of the kind described by the noble Lord, Lord Molyneaux, may fall foul of common law. I believe it would be better if it were stated in statute law as well.

As far as the security forces' religion is concerned, it may be difficult to mount a case even on the basis that the noble Lord, Lord Lester, suggests. In the Army, for example, there are many Roman Catholics and members of all sorts of religions. I have no reason to suppose that the proportions in the Army are different from the proportions in the general population of the United Kingdom. It might be difficult to use that argument. The RUC is a different matter because Catholics, for a long time, have been terrorised against joining the RUC. That is the basic reason why there is such an imbalance of religions in the RUC.

This order deals with the refusal of someone to sell a house to another person on the grounds of their religion whether Roman Catholic or Protestant. That is not the most disgraceful discrimination in the area of housing. The most disgraceful discrimination is when people are forced out of their houses because of their religion. We know that that occurs. It is already illegal. The order does not deal with that. However, it is an example of the point made by the noble Lord earlier: that there is little evidence of discrimination in the fields with which this order deals, but there is a great deal of evidence of other types of discrimination which are more vicious and damaging and difficult for the law, the RUC, and so on, to deal with.

I was also disturbed by the speech of the noble Lord, Lord Lester, when he described the re: Amin gap. During the debates on the Northern Ireland Bill (as it then was) we were given an assurance by the Minister. The noble Lord read a passage--he suggested that it was from Report stage; it is from Third Reading--which was entirely accurate. The Minister reassured us that the re: Amin gap would be filled. We all want it to be filled. The Minister shakes his head. I do not wish to read out the words again unnecessarily. The noble Lord, Lord Lester, asked whether discrimination would apply to public authorities as well as private bodies, and the Minister replied that the answer was yes.

On page 45, in paragraph 5.49 of the White Paper published in March of this year, there is discussion of this point and the recommendation of SACHR that the provision should be extended to apply to indirect discrimination of this type. The White Paper stated that the proposed extension of fair employment law to the fields of goods, facilities, services and premises will greatly extend the public sector's obligation to avoid indirect discrimination.

The order implements the White Paper in that respect. However, it does not appear to do what is advertised. As the noble Lord, Lord Lester, suggested, the order may have been drafted before the re: Amin point was

7 Dec 1998 : Column 768

raised in the course of debates on the Bill. I find that slightly unlikely. The order has been amended to take account of the existence of the assembly, and other points arising from the Bill. In any case, a problem still exists.

The noble Lord, Lord Lester, drew attention to a different problem: that of education arising from the application of the Human Rights Act. Previous legislation--it is continued into this legislation--exempts teachers and the employment of teachers from the provisions of the legislation. We know why that is. It is because many of the schools in Northern Ireland are of one religious persuasion or another. There are many Roman Catholic schools and the state schools consequently take primarily Protestants, with the integrated schools doing their best to take the balance from both communities. I understand that many teachers are not of what one might call the appropriate religion in the schools. There are some Protestant teachers in the Roman Catholic schools, and vice versa in the state schools. I wonder whether it is still necessary to exempt teachers from this legislation. If that gets us into trouble with the Human Rights Act it may have been better to have included teachers at primary and secondary schools in the legislation in the first place.

The order extends the monitoring to part timers and to leavers in most cases. I note that the monitoring regulations are to be left to the Assembly to agree, on the proposal of the department. That assumes, as we all assume and hope, that the Assembly goes ahead and is able to discharge that kind of responsibility. However, I wish to raise a few small points. The regulations in Article 48(10) have for some reason or another been assigned to the Assembly. It would be helpful to know why it is that, when a concern has to satisfy conditions for registration, reference to employees of any person shall include a reference to the employers and bodies corporate. It is a very technical clause. For some reason that has been picked out from among the many clauses and subsections to be the responsibility of the Assembly.

More interestingly, perhaps, orders made under Article 6(3) relate to,

"employment concerned with exploration of the sea bed or subsoil".

By this provision this department is enabled to provide that the provisions shall have effect in a certain way. Regulations on that matter are specifically to be approved or otherwise by the Assembly. That surprised me because the sea bed and subsoil is a reserved matter, for the time being, under the Northern Ireland Act. It is not a matter that has been given to the Assembly.

Another matter which arises from the Northern Ireland Act concerns the definition of a Minister. We had much discussion on the definition of a Minister during the passage of the Bill. It was not left in a satisfactory situation. However, on page nine of the order, the definition of "Northern Ireland Minister" specifically includes the First Minister and deputy First Minister acting jointly, but not when they act separately. However, there is no reference to junior Ministers. I wonder whether junior Ministers should have been included in that definition. That is again the kind of point which would be discussed in Committee.

7 Dec 1998 : Column 769

Page nine of the order gives a complicated definition of a member of a vocational organisation. For some reason there is a distinction in (a) and (b) between those who belong to a vocational organisation--a trade union, employer's organisation, or a professional association which covers people in their jobs. However, (b) states that students, for example, are not members if they are concerned with a trade union or employer's organisation, but only if they belong to a professional type of organisation. That seemed to me extremely odd.

More importantly, it seems odd that a member of a trade union includes an applicant or a former member except for the purposes of Article 23. Among other things, Article 23 deals with discrimination against retired members. It is odd that someone should not be held to be a member of a trade union, and hence covered by the legislation, if it has deprived him of membership, which is part of Article 23 on page 32. The point is complicated.

In the light of the kind remarks of the noble Lord, Lord Blease, about our previous co-operation on Northern Ireland matters, for which I am grateful, it would be only fair of me to say that if the Minister is unable to deal with the points in detail he might be kind enough to write to me in due course.

In general, I welcome the order, which consolidates complicated law and the extensions in a single document, provided the extensions have the desired meaning and the meaning that the Government intended--although doubt has been thrown on that during tonight's debate.

6.30 p.m.

Lord Dubs: My Lords, I am grateful for the comments that have been made in particular by my noble friends who were supportive of the legislation. I take the point made by the noble Lord, Lord Cope, and my noble friend Lord Fitt that the legislation is complicated. I fully understand why, given our procedures, noble Lords find difficulty in doing justice to it. Were we not handing over power to the Assembly I should be sympathetic to suggestions about changes in our procedure for dealing with such matters. All being well, such future legislation will be before the Assembly and not before Parliament. Therefore, the matter will be resolved happily.

I shall deal first with the point made by the noble Lord, Lord Lester, about the Amin case and indirect discrimination by public bodies. I agree with him that there is a gap provided the House of Lords' decision in that case represents the law. However, the gap in Northern Ireland is not as wide as in Great Britain because of Section 76 of the Northern Ireland Act and previously the provisions in Section 19 of the Northern Ireland Constitution Act 1973. To make any changes now to fair employment legislation would lead to it being out of step with that on sex and race.

Having agreed with the noble Lord, Lord Lester, that there is a gap, although smaller than he suggested, perhaps he will allow me to write to him in more detail.

7 Dec 1998 : Column 770

The difference between us is not large, although I concede that there is a difference in the terms in which he put the point forward.